After months of being shuttered by the coronavirus pandemic, the doors at federal courthouses around the nation are slowly starting to swing open with the convening of socially distanced grand juries.
Jurors, tasked with deciding whether to issue criminal indictments, will be seated far apart from one another, or in some cases—like in the U.S. District Court for the Middle District of Georgia, and in Montana’s federal district court—will be required to view proceedings via video in different rooms or courthouses.
That use of video is worrisome, said Nina J. Ginsberg, president of the National Association of Criminal Defense Lawyers.
“There is such a tendency to depersonalize what you’re seeing on a screen, and you’re distancing yourself from the gravity of the decisions that you’re making,” she said.
Grand juries, which usually involve 16 to 23 people, may resume in at least 10 of the 94 federal trial courts, while a few more will seat six to 12-person petit jury trials, according to a Bloomberg Law review of court orders.
Grand juror selection during a pandemic could result in panels that don’t represent a cross-section of the community, said Ginsberg, a founding partner in Alexandria, Virginia’s DiMuroGinsberg law firm. Essential workers, medical staff, and those at high risk for the virus could be excused from the jury pool and not represented as a result.
Concern over not getting a fair cross section is exactly why some courts, such as the Kansas City-based Western District of Missouri, are choosing not to restart proceedings.
“Grand juries are afforded a fair amount of flexibility in how they go about conducting their business,” said Charles E. Peeler, U.S. attorney for the Middle District of Georgia, who worked on creating the new grand jury format using video.
“So long as each participating grand juror can perform their essential function of receiving evidence, hearing testimony, having the ability to ask questions, deliberate, and vote, then, no, we’re not concerned with any legal challenges to the way that we’re doing it,” he said.
Other districts that have made grand juries available again include the District of Minnesota, the District of New Mexico, the District of Connecticut, the Eastern District of Tennessee, the Tulsa-based Northern District of Oklahoma, the District of Hawaii, the San Diego-based Southern District of California, and the Atlanta-based Northern District of Georgia.
The budding return of the grand jury comes after months of uncertainty in federal courts.
Nearly all of the federal trial courts suspended or canceled jury proceedings, restricted access to courthouses, and started using teleconferencing when the outbreak began in March, according to a Bloomberg Law analysis of court orders.
The Administrative Office of the U.S. Courts recently released guidance for its courts to reopen in a four-phased approach that’s dependent upon local health factors. Restarting grand juries is a step they can take in either of the first two phases.
“The suspension of grand juries around the country has really been the reason no indictments were being brought literally everywhere,” Ricardo S. Martinez, chief judge of Washington’s Seattle-based Western District. “The whole system shut down.”
Law enforcement investigations and arrests continued amid the pandemic and, as criminal case processing slowed, many federal chief judges issued suspensions of the Speedy Trial Act in an effort to provide more time while courts are shuttered. But it’s unclear how long that can last.
While the grand jury isn’t the end-all for moving a criminal case forward, its absence does leave a unique hole in the legal system.
The grand jury is often criticized as an institution, but “what it represents is really that community involvement in the determination of whether a case should go forward,” Roger A. Fairfax, professor of criminal law at The George Washington University Law School, said.
There’s also time sensitivity with criminal cases under the Speedy Trial Act and statutes of limitation that could be prompting the return of grand juries more quickly than other in-court events, he said. And, while federal courts have ordered suspensions for both types of deadlines, those suspensions could be subject to challenges.
“There is and will certainly be debate over authority of courts to issue these kinds of orders when they’re not expressly authorized by statute,” Fairfax said.
Among the courts starting their proceedings back up are the District of Montana and the Macon-based Middle District of Georgia, both of which implemented video proceedings.
“We took a hard look at ways we could still administer justice and protect our grand jurors, grand jury witness, lawyers in our office and in-court personnel,” Peeler, the Macon federal prosecutor, said of his work with the court to develop a plan for the proceedings accounting for the virus.
What they arrived at was a format outlined by Chief Judge Clay D. Land in an April 30 order where jurors in different courtrooms would be connected to the same presentation using the court’s video conferencing system.
Those jurors will be provided with masks if they don’t have one, their entrance into the courthouse will be staggered, and the grand jury secrecy will be protected by marshals outside each individual meeting room, Peeler said.
The Middle District of Georgia, which also includes Athens and Columbus, will convene a grand jury this month. Elsewhere, the newly formatted presentations are already underway.
The five-courthouse District of Montana already had its first socially distant grand jury in May when it reconvened a jury empaneled before the pandemic and connected jurors by video from separate locations in Missoula, Helena, and Butte for convenience sake.
“Contrary to our usual practice, we directed folks to report to the courthouse nearest to their residence,” Clerk of the Court Tyler P. Gilman said. He also noted that the court is reasonably confident the procedures are legally sound.
While defense attorneys have concerns, some aren’t opposed to grand juries restarting in other socially distant formats.
New York City criminal defense lawyer Mark I. Cohen said he opposes the use of video in the presentations but sees a path forward for socially distant grand juries that use larger rooms in courthouses like ceremonial courtrooms.
“They could actually open the federal courthouse for a week or two to allow the grand juries to sit in these big rooms. As long as there aren’t audibility issues, I don’t see a problem,” Cohen said.
The Eastern District of Virginia, which will permit the use of grand juries in all divisions on June 11, is doing just that by requiring those proceedings be held in “the gallery of a large courtroom.”
Additionally, for courts, just successfully calling in jurors is a positive step forward.
Before the Montana federal court called its grand jury back, it reached out to each juror to gauge how they felt about returning to the court, Gilman said. That helped answer an important question for the court: Would jurors be willing and able to serve?
The answer was yes, enabling them to take an additional step forward. The district held its first jury trial since the start of the pandemic the week of June 1.
Montana has among the least coronavirus cases of any U.S. state, according to Centers for Disease Control and Prevention data. But as new cases slow elsewhere in the nation, its grand jury experiment could be a road map for other states.
“That small sample gave us a sense that if we feel that it can be safe for us to proceed, there is a critical mass of people out there in the jury pool who are ready to come and serve,” Gilman said.
—With assistance from Jasmine Han, Pat Joy, and Porter Wells